Mitzvah Or Kinyan?
‘…Both Shall Have Intention At The Same Time …’
(Yevamos 102b)
The Gemara states that it is essential that the yavam and the yevama perform chalitza with kavana [proper intention]; if either one lacks kavana, the chalitza is invalid.
What Constitutes Intention?
The commentaries consider what type of kavana is required:
Yashreish Yaakov (Rabbi Shlomo Drimmer, Yevamos) infers from the words of Rashi (102b s.v. Ha chazinan) that they must have “kavanas mitzvah,” the intent to fulfill the mitzvah of chalitza. Just as one who listens to the shofar on Rosh Hashana does not fulfill the mitzvah if he lacks kavana (Rosh Hashana 28a), so, too, if one performs the act of chalitza without intending to fulfill the mitzvah, one has not fulfilled the mitzvah. Rashi seems to be of the opinion that a chalitza that is performed only for the sake of releasing the yevama, and not for the sake of the mitzvah, is not effective. Apparently, chalitza served to release a yevama from her zikah (bond to the yavam) only through the fulfillment of the mitzvah of chalitza.
A Stolen Sandal
Ramban, Rashba and Ritva (103b) indicate that if one performs chalitza in a forbidden manner so that the mitzvah is not fulfilled [due to the principle of “mitzvah haba’ah be’avera – a mitzvah that results from a sin is not a mitzvah”], the chalitza is ineffective. Thus, these Rishonim indicate that they agree with Rashi’s opinion that chalitza effectively releases the yevama from her zikah – bond only as a result of a fulfillment of the mitzvah.
Intention To Acquire
The Chacham Tzvi (siman 1) maintains that the required kavana for chalitza is kavanas kinyan (lit. the intention to acquire freedom from the bond). He holds that chalitza does not require kavanas ha’mitzvah [i.e., the intent to perform a command] because it is not a mitzvah such as lulav and shofar, which the Torah obligates one to perform. The laws of chalitza were given merely as a means of releasing a yevama from the yavam when necessary, akin to the laws of divorce that were given only as a means of releasing a married woman from her husband when there is a need to do so.
